Legal Rights of Persons With Disabilities - Ossh.com

c. The Child Must Have a Record of Poor School Performance
Having a disability or a health problem is not enough to make a child eligible for the benefits of the
Act. A child must have a disability that actually affects school performance in a negative way. For
example, a child with completely controlled epilepsy who is able to participate satisfactorily in a regular
classroom would not be eligible for special education. Basically, special education and related services are
only available to those who need them. (34 C.F.R. '' 300.7 and 300.26.)
2. What Procedures Must Be Followed Before a Child May
Receive Special Education and Related Services
a. The Child Must Be Evaluated
i. Request an Evaluation
A child's eligibility for special education is determined by a process called "assessment" or
"evaluation." The state and school districts are required to try and find all children who might be entitled to
special education. However, anyone can request the assessment of a child. Requests for an assessment
must be in writing. The school district must provide assistance to anyone making an oral request for the
assessment of a child.
ii.
A Child Cannot Be Evaluated Without Parental Consent
No child may be evaluated without his or her parents' consent. "Parent" includes any person
having legal custody of the child. The school district must explain to the parents exactly how the
assessment will be done. The explanation must be in writing and in the parents' own language. If the
parents' primary method of communication is American Sign Language (ASL), then the explanation must
be given in ASL. If the parents' own language cannot be written, then the explanation must be given to the
parents orally in their own language, as well as in written English. If the parents agree to an assessment of
their child, then they must sign a consent form provided by the school district. The school district must
explain to the parents that they have a right to change their minds at any time, even after they have signed
the consent form. If the parents refuse to consent to an assessment of their child, the school district may
request a hearing to require the assessment. (34 C.F.R. ' 300.500 et seq.)
iii.
Testing Requirements
The persons actually doing the assessment of a child must be trained professionals. The tests used
to evaluate a child must be fair, accurate, appropriate, and free of ethnic, cultural, or sexual bias. The tests
must be given so that the results are not distorted by a child's disability and must, if at all possible, be given
in a child's own language or method of communication. Tests must be given in every area that might
explain a child's poor school performance, including tests for hearing and vision. The persons who give the
tests must make a written report on all tests given to a child. The parents
are entitled to a copy of the report in their own language or method of communication. (20 U.S.C.
' 1412(6)(B); 34 C.F.R. '' 300.530 and 300.543.)
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